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The spotlight on external cladding following the Grenfell Tower fire in London earlier this year has seen Parliament introduce the Building Products (Safety) Act 2017 (NSW) (the Act) on 30 November 2017, to give Councils and other bodies powers to prevent the use of unsafe building products. The Act has not yet commenced.

The Act aims to:

  • give the Commissioner for NSW Fair Trading (Secretary) the power to prohibit the use of a building product in a building if they are satisfied on reasonable grounds that the use is unsafe
  • to enable the Secretary to identify buildings in which products have been used in a way that is prohibited (including before the prohibition was imposed)
  • to enable Councils or other relevant enforcement authorities to order that a safety risk posed by the use of a product in the building be eliminated or minimised, and
  • to confer other powers for the investigation and assessment of building products, so that the unsafe use of building products can be identified and prevented.

In particular, Councils will be able to issue building product rectification orders, requiring a building owner to eliminate or minimise a safety risk concerning a banned building product, and to remediate or restore a building following the elimination or minimisation of the risk.

Further, Council employees may be appointed as authorised officers and exercise functions conferred by the Act, including assessing whether the use of a building product in a building is unsafe, and investigating and monitoring compliance with the requirements imposed by the Act.

The Act also:

  • amends the Environmental Planning and Assessment Act 1979, to provide that a building certificate does not prevent a Council from making a building product rectification order under the Act
  • introduces a requirement to state whether there is any affected building notice or building product rectification order (new terms under the Act) of which the Council is aware that is in force in respect of the land in a planning certificate (under the Environmental Planning and Assessment Regulation 2000), and
  • inserts a note about the provisions of the Act that relate to the identification and rectification of affected buildings under s 124 of the Local Government Act 1993.

The Department of Planning and Environment has also placed the draft Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2017 on exhibition. The draft regulation will introduce a new definition for "combustible cladding" and amend relevant State Environmental Planning Policies to limit the use of combustible cladding as exempt development. The draft regulation and Explanation of Intended Effects can be viewed on the Department's website and will be open for public comment until 16 February 2018.

We will keep you across any developments before the Act commences. If you have any questions about Council powers under the new Act, please get in touch.

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